State v. O'Kelly , 20 N.C. App. 661 ( 1974 )

BRITT, Judge.

By his first assignment of error, defendant contends the trial court erred in denying his motion to dismiss on the ground that his constitutional right to speedy trial had been violated. On 6 June 1973, Judge Chess conducted an evidentiary hearing on defendant’s motion at which time defendant presented evidence tending to show:

He was arrested on account of the charges involved here on or about 4 August 1972. At the time of the hearing, he was serving a 26-30 years sentence at Central Prison pursuant to conviction (evidently in 1972) on another charge and had been in Central Prison continuously since late August or early September of 1972. In September of 1972, defendant wrote a letter tó the solicitor of the Twentieth Judicial District, advising that witnesses were available who would prove his innocence in the pending cases but some of them were planning to leave North Carolina; he requested that he be given a trial at the 16 October 1972 session of the court. Around 15 October 1972, defendant prepared and mailed to the solicitor a motion asking for a speedy trial or a dismissal of the charges. On 12 February 1973, he wrote a letter to the Clerk of Superior Court of Union County (with copies to the resident judge, solicitor, and defendant’s attorneys) calling attention to his previous communications and stating that, since that time, material defense witnesses had moved to Florida; he further requested a trial at the 16 February 1973 session of the court. On 20 February 1973, Resident Judge McConnell wrote defendant and advised that he was informed that the solicitor expected to call defendant’s cases for trial in March or April. On 7 May 1973, defendant obtained subpoenas for four witnesses, ordering them to appear in Union Superior Court on 9 May 1973; defendant provided Charlotte addresses for the witnesses but the subpoenas were returned unserved. Defendant was not given a trial at the May Session and on 5 June 1973, filed a motion setting forth the foregoing facts and asking that the charges against him be dismissed for the reason that his constitutional rights to a speedy trial had been violated.

A witness (identified as defendant’s fiancee) testified that during 1972 she talked with the four witnesses named in the subpoenas; that two of them stated they were with defendant on the day of the alleged crimes; that the other two stated they saw defendant purchase from a third party the gun allegedly stolen; that neither of the witnesses is now available; and she had been advised that the witnesses were in Florida but that she was unable to obtain their addresses.

The court made findings of fact and concluded that the delay complained of was not violative of defendant’s rights and denied the motion.

In the recent case of State v. Frank, 284 N.C. 137, 141, 200 S.E. 2d 169, 172-173 (1973), the Supreme Court said:

“Of course the right to a speedy trial is an integral part of the fundamental law of this State, and the fact that an accused is in prison for other offenses does not mitigate against his right to a speedy and impartial trial. State v. Johnson, 275 N.C. 264, 167 S.E. 2d 274 (1969); Smith v. Hooey, 393 U.S. 374, 21 L.Ed. 2d 607, 89 S.Ct. 575 (1969). Even so, the burden is on an accused who asserts denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. State v. Harrell, 281 N.C. 111, 187 S.E. 2d 789 (1972) ; State v. Johnson, supra; State v. Hollars, 266 N.C. 45, 145 S.E. 2d 309 (1965).

“ ‘The word “speedy” cannot be defined in specific terms of days, months or years, so the question whether a defendant has been denied a speedy trial must be answered in light of the facts in the particular case. The length of the delay, the cause of the delay, prejudice to the defendant, and waiver by defendant are interrelated factors to be considered in determining whether a trial has been unduly delayed.’ State v. Brown, 282 N.C. 117, 191 S.E. 2d 659 (1972). Here, the record is silent as to the cause of the eight to ten months delay in the trial of these , cases. The length of the delay itself is not per se determinative, and there is no showing that the delay was purposeful or oppressive or by reasonable effort could have been avoided by the State. See Pollard v. United States, 352 U.S. 354, 1 L.Ed. 2d 393, 77 S.Ct. 481 (1957).”

In the instant case, defendant failed to show that the delay in bringing him to trial was due to the neglect or willfulness of the prosecution. There was no showing that the delay was purposeful or oppressive. We hold that the court did not err in denying defendant’s motion to dismiss and the assignment of error is overruled. We feel constrained to add, however, that while the burden is on an accused who asserts denial of his right to a speedy trial, there are those instances when the State would be well advised to present evidence explaining the delay.

Defendant assigns as error an instruction the court gave the jury with respect to the doctrine of possession of recently stolen property. The court instructed as follows (the portion challenged being in brackets) :

“[Under the doctrine of recent possession, if you find beyond a reasonable doubt that the shotgun was stolen, and two, the defendant had possession of this same shotgun, and three, that he had possession so soon after it was stolen that under such circumstances and under such circumstances as to make it unlikely that he had obtained possession honestly,] you may consider this together with all other facts and circumstances in deciding whether or not the defendant is guilty of breaking or entering or larceny.”

Defendant argues that the court’s use of the word “honestly” was error.

In State v. Jackson, 274 N.C. 594, 597, 164 S.E. 2d 369, 370 (1968), we find: “The inference arising from the possession of recently stolen property is described as ‘the recent possession doctrine.’ Possession may be recent, but the theft may have occurred long before. In that event, no inference of guilt whatever arises. Actually, the possession of recently stolen goods gives rise to the inference. The possession, in point of time, should be so close to the theft as to render it unlikely that the possessor could have acquired the property honestly. State v. Foster, 268 N.C. 480, 151 S.E. 2d 62; State v. Jones, 227 N.C. 47, 40 S.E. 2d 458; State v. Patterson, 78 N.C. 470; State v. Kent, 65 N.C. 811.”

The evidence presented by the State in the case at bar tended to show: On 12 July 1972, Gary Penninger, his wife and 11 year old son, resided in a brick home at Route 1, Marshville, N. C. On that date, Mr. Penninger left home around 7:50 a.m., his wife left around 8:15 a.m., and his son left around 11:00 a.m. All windows and doors in the home were closed and locked when the son left and defendant had no permission to enter the house. Mr. Penninger was the first member of the family to return home and that was around 3:00 p.m. that afternoon. At that time, he found the home had been broken into and numerous articles, including a .12 gauge Remington 870 Wing Master shotgun, had been taken. Around 4:00 p.m. that same day, Boyd Simmons, who worked at a barbershop in Charlotte but lived in, and was a part-time special deputy sheriff of, Union County, and who knew defendant, saw defendant in Charlotte with a shotgun. Simmons tried to purchase the gun from defendant that afternoon but they could not agree on the price. Defendant told Simmons that his uncle had died and his aunt had given him the gun. Simmons and defendant continued to negotiate and some six days later defendant sold the gun to Simmons for $60.00. Some two weeks later, the sheriff of Union County saw the gun in Simmons’ possession and suspected that it was the same gun Mr. Penninger had reported stolen. Pen-ninger positively identified the gun by its serial number and other markings. (We take judicial notice of the fact that Marsh-ville, N. C., is in Union County, that Charlotte is in Mecklenburg County, and the two counties adjoin.)

Defendant offered no evidence.

Considering the evidence presented, particularly the brief period of not more than five hours between the time the shotgun was taken from the Penninger home and the time it was seen in defendant’s possession in an adjoining county, together with defendant’s statement as to how he acquired the gun, we perceive no prejudicial error in the challenged instruction and the assignment relating thereto is overruled.

We have considered the other assignments of error brought forward and argued in defendant’s brief but fail to find merit in either of them.

No error.

Judge Vaughn concurs. Judge Parker dissents.